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Update on medical assistance in dying: Bill C-14

Update on Medical Assistance in Dying: Bill C-14
On April 15, 2016, the federal government responded to the Supreme Court of Canada’s decision in Carter v. Canada (Attorney General), 2015 SCC 5 by introducing Bill C-14 into the House of Commons for first reading. While Bill C-14 addresses many of the issues raised by the Special Joint Committee on Physician-Assisted Dying, it appears to ignore one of the committee’s key recommendations, namely, that medical assistance in dying be available to patients with non-terminal illnesses who are not near death. It also leaves some matters to be determined by provincial governments, health care institutions and regulatory bodies for physicians and nurse practitioners.

Background
To recap, in Carter v. Canada (Attorney General), 2015 SCC 5, a woman (Kay Carter) who wished to end her life but was unable to do so as a result of spinal stenosis challenged the constitutionality of sections 14 and 241(b) of the Criminal Code, which prohibit a person from assisting another person to commit suicide. The Supreme Court of Canada allowed Ms. Carter’s challenge and declared sections 14 and 241(b) of the Criminal Code to be invalid to the extent that they prohibit medical assistance in dying for a competent adult person who:

clearly consents to the termination of life; and

has a grievous and irremediable medical condition (including an illness, disease or disability) that causes
enduring suffering that is intolerable to the individual in the circumstances of his or her condition

Notably, the court did not limit medical assistance in dying to persons with terminal illnesses, who are close to death.

Criteria for Accessing Medical Assistance in Dying
Bill C-14 creates exemptions from the offences set out in sections 14 and 241(b) of the Criminal Code to permit physicians and nurse practitioners to provide medical assistance in dying and to permit pharmacists and other persons to assist in the process. However, Bill C-14 limits medical assistance in dying to persons who:

are eligible for health services funded by a government in Canada;

are 18 years old and capable of making decisions with respect to their health;

have voluntarily requested medical assistance in dying and given informed consent to receive medical
assistance in dying; and

have a “grievous and irremediable medical condition”

To qualify as having a “grievous and irremediable medical condition”, a person must have a serious and incurable illness, disease or disability that causes them enduring suffering that is intolerable to them and that cannot be relieved under conditions they consider acceptable. This is consistent with the court’s decision in Carter v. Canada (Attorney General), 2015 SCC 5 . However, Bill C-14 states that a person must also be “in an advanced stated of irreversible
decline in capability” and must have a natural death which is “reasonably foreseeable” before they will qualify as having a “grievous and irremediable medical condition”.

Unfortunately, the last two requirements are vaguely worded. This will make it difficult for physicians and nurse practitioners to determine when a patient can lawfully access medical assistance in dying and will leave Bill C-14 open to legal challenges. Furthermore, the last two requirements appear to exclude persons who suffer from non-terminal illnesses who are not close to death from accessing medical assistance in dying. Indeed, if Kay Carter were still alive, it is not clear whether she would be able to access medical assistance in dying under Bill C-14. The litigation director for the BC Civil Liberties Association, Grace Pastine, recently advised the Canadian Press that Ms. Carter would be excluded under Bill C-14. However, Minister of Justice Jody Wilson-Raybould has maintained that Bill C-14 is compliant with the court’s decision in Carter v. Canada (Attorney General), 2015 SCC 5 and respects the Canadian Charter of Rights and Freedoms.

Procedural Safeguards
Bill C-14 sets out the procedures that must be followed before a person can access medical assistance in dying. In general, before a physician or a nurse practitioner provides a person with medical assistance in dying, the physician or nurse practitioner must:

satisfy themselves that the person meets the four criteria set out above;

ensure that the person’s request for medical assistance in dying was made in writing, signed and dated after
the person was informed that their natural death had become “reasonably forseeable” and before two
independent witnesses who also signed and dated the request;

ensure that another, independent physician or nurse practitioner has provided a written opinion confirming
that the person meets the four criteria set out above;

ensure that there are least 15 clear days between the day on which the request was signed by the person
and the day on which medical assistance in dying is provided, or a shorter period of time that the physician or
nurse practitioner deems appropriate in the circumstances; and

ensure that the person has been informed that they may, at any time and in any manner, withdraw their
request for medical assistance in dying.

A physician or nurse practitioner who knowingly fails to comply with all of the above requirements may be liable on conviction to a term of imprisonment of up to 5 years for an indictable offence and to a term of imprisonment of up to 18 months for a summary offence.

In effect, these procedural safeguards prohibit persons from consenting to receive medical assistance in dying by way of an advance directive. They also expose physicians and nurse practitioners to criminal prosecutions in circumstances where physicians and nurse practitioners knowingly provide medical assistance in dying to a person who does not meet the four criteria set out above.

Provision of Medical Assistance in Dying
Bill C-14 confirms that medical assistance in dying may be provided by physicians or nurse practitioners with assistance from other health care professionals. Alternatively, patients may self-administer drugs that have been prescribed to provide medical assistance in dying. A person who assists a physician, a nurse practitioner or a patient in providing medical assistance in dying will not be subject to criminal sanctions. This is true even if the person has a reasonable but mistaken belief about any fact that is an element of the criminal exemption.

Bill C-14 states that medical assistance in dying must be provided with “reasonable knowledge, care and skill and in accordance with any applicable provincial laws, rules or standards”. Furthermore, the physician or nurse practitioner who obtains a substance from a pharmacist for the purpose of providing medical assistance in dying must provide prior notice to the pharmacist of the use to which the substance will be put.

Information-Gathering
Bill C-14 requires physicians and nurse practitioners who receive requests for, and pharmacists who dispense substances in connection with the provision of, medical assistance in dying to provide information to the federal government for the purpose of permitting the monitoring of medical assistance in dying. It also authorizes the federal Minister of Health to make regulations respecting the collection, use and disposal of that information.

What Bill C-14 Does Not Address
Bill C-14 does not address:

whether life insurance claims will be paid for deaths resulting from medical assistance in dying;

whether physicians and nurse practitioners will be able to assess a patient’s eligibility for medical assistance
in dying using telemedicine services;

whether medical assistance in dying will be listed as the manner of death on medical certificates of death; or

whether conscientiously objecting health care institutions, physicians and nurse practitioners will be required
to inform patients about medical assistance in dying and refer them to another health care institution or health
care provider to obtain medical assistance in dying.

Accordingly, these matters will need to be addressed by provincial governments, health care institutions, and regulatory bodies for physicians and nurses.